United States v. Goris

• Decision Date: 27 November 2017
• Docket Number: No. 17-1104,17-1104
• Citation: 876 F.3d 40
• Parties: UNITED STATES of America, Appellee, v. José Ignacio GORIS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

876 F.3d 40

UNITED STATES of America, Appellee,

v.José Ignacio GORIS, Defendant, Appellant.

No. 17-1104

United States Court of Appeals, First Circuit.

November 27, 2017

Robert B. Mann, with whom Robert B. Mann Law Office, Providence, RI, was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Stephen G. Dambruch, Acting United States Attorney, was on brief, for appellee.

Before Lynch and Selya, Circuit Judges, and Levy, District Judge.^*

SELYA, Circuit Judge.

Defendant-appellant José Ignacio Goris, convicted of a drug-trafficking offense in the aftermath of a government sting, strives to convince us that he should be granted a new trial based on denied discovery and alleged instructional error. We are not persuaded: after articulating the standard for materiality pertaining to discovery in criminal cases (a matter of first impression in this circuit), we uphold both the district court's denial of the requested discovery and its jury instructions. Accordingly, we affirm.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the case. In the late spring and summer of 2014, the defendant was the target of an elaborate sting operation undertaken by the Drug Enforcement Administration (DEA). Believing himself to be communicating with a representative of a "reputable" drug trafficker (an oxymoron of the first order), the defendant had extensive discussions with an undercover DEA agent regarding his purchase of one to five kilograms of cocaine. The "reputable" drug trafficker had previously provided the defendant with subpar product. Once bitten, twice shy, so the defendant dealt cautiously with the trafficker's supposed representative (the undercover agent). While the defendant repeatedly told the undercover agent that his goal was to purchase from one to five kilograms of cocaine, he insisted that he could not make a large purchase without first testing the product.

At a meeting in the agent's car, the defendant explained that he wanted to take one kilogram of cocaine and test it. If the sample proved satisfactory, he would then consummate the purchase. Reaching back behind the seat, the defendant handled a dummy kilogram that had been placed there by the agent and said, "that feels good." Later in the day, the two men met inside a home improvement store and made arrangements for the final handoff: the defendant would remove a brick of cocaine (approximately one kilogram) from the agent's car and take it home for testing.

The test never came to pass. After the defendant retrieved the brick (the dummy kilogram, as matters turned out) from the agent's car, he was arrested on the spot. A federal grand jury subsequently charged him with attempting to possess 500 grams or more of cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1).

In the course of routine pretrial discovery, the government produced materials making clear its intention to offer at trial the recorded conversations between the defendant and the undercover agent, including the conversation that occurred on the day of the defendant's arrest inside the home improvement store (the August 14 recording). The defendant moved for additional discovery related to the August 14 recording, but the district court (Lisi, J.) denied his discovery motion on two grounds, finding that materiality had not been shown and that the information sought was proprietary in nature. For reasons not relevant here, the case was reassigned to a different trier and, immediately before the start of trial, the defendant effectively renewed his discovery motion. The district court (McConnell, J.) refused to revisit the earlier ruling.

At trial, the defense sought to persuade the jury that the defendant never actually intended to purchase the cocaine but, rather, merely wanted a sample of the drug for testing. The defense also suggested that the August 14 recording had been manipulated by the government and could not be considered credible. The jury was unconvinced: it found that the defendant had attempted to possess 500 grams or more of cocaine with intent to distribute. Judge McConnell imposed a five-year term of immurement and this timely appeal followed.

II. ANALYSIS

In this venue, the defendant, represented by new appellate counsel, advances two claims of error. First, he argues that the district court abused its discretion in denying his motion to examine the original of the August 14 recording and the software that generated and stored it. Second, he finds fault with the district court's instructions regarding the jury's duty to find, beyond a reasonable doubt, that the defendant had attempted to possess 500 grams or more of cocaine with intent to distribute. We discuss these claims of error sequentially.

A. Discovery.

We begin with the defendant's plaint that the district court improperly denied his request for additional pretrial discovery. That request was brought under Federal Rule of Criminal Procedure 16, and a district court's determinations under Rule 16 are reviewed for abuse of discretion. See United States v. Correa-Alicea, 585 F.3d 484, 493 (1st Cir. 2009). We caution, though, that an abuse of discretion will not be found in this context "unless the objecting party can show prejudice." United States v. Chiaradio, 684 F.3d 265, 276 (1st Cir. 2012) (citing United States v. Spinosa, 982 F.2d 620, 631 (1st Cir. 1992) ).

In criminal cases, standard types of discovery are routinely exchanged shortly after the arraignment, without the necessity of any motion. See Fed. R. Crim. P. 16(a)-(b) ; D.R.I. R. Cr. 16. Where circumstances warrant, however, a defendant may seek additional discovery. To this end, Rule 16 provides that, upon a defendant's request, "the government must permit the defendant to inspect ... data, ... tangible objects, ... or copies or portions of any of these items, if the item is within the government's possession, custody, or control" and "the item is material to preparing the defense." Fed. R. Crim. P. 16(a)(1)(E). The defendant, as the moving party, bears the burden of showing materiality. See United States v. Carrasquillo-Plaza, 873 F.2d 10, 12 (1st Cir. 1989).

Although our court has not yet defined "materiality" in this context, we do not write on a pristine page. The courts of appeals have displayed remarkable uniformity in concluding that it is not enough that what is sought "bears some abstract logical relationship to the issues in the case." United States v. Ross, 511 F.2d 757, 762 (5th Cir. 1975). Rather, a showing of materiality requires "some indication" that pretrial disclosure of the information sought "would have enabled the defendant significantly to alter the quantum of proof in his favor." Id. at 763 ; accord United States v. Caro, 597 F.3d 608, 621 (4th Cir. 2010) ; United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003) ; United States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir. 1996) ; United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991) ; United States v. Marshall, 532 F.2d 1279, 1285 (9th Cir. 1976). This significant alteration may take place in a myriad of ways, such as "uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (citations omitted).

In order to uphold a district court's denial of a request for additional discovery, we do not demand epistemological certainty that no discoverable information was withheld from the defendant. See United States v. Rosario-Peralta, 199 F.3d 552, 559 (1st Cir. 1999). If, say, a defendant's discovery request is grounded in a speculative theory, a district court's decision to deny that request is not an abuse of discretion. See id.

Here, the defendant premised his request for additional discovery on the notion that the government had doctored or otherwise manipulated the recorded conversations supporting its case (and, specifically, that the August 14 recording had been edited). The district court prudently convened an evidentiary hearing to give the defendant an opportunity to put some flesh on this bare-boned allegation. At the hearing, defense counsel introduced expert testimony from a former law enforcement officer that, based on his experience with recording technology, the moment when the background noise fell to zero in the August 14 recording might suggest that the recording had been modified. On cross-examination, though, the witness's experience with recording technology proved to be of little value: despite his years in the field, he was unfamiliar with the type of recording technology employed in this case and had never used that technology.

This lack of familiarity was a critically important datum. As explained in an affidavit submitted by the government in the district court, the recording system used in this case allowed agents to record communications digitally on a secure, web-based platform, which the recording officer accessed through a cellular connection. Once a recording was initiated, a unique file would be created in the database. This file could be accessed for playback through a web-based platform, but could not be deleted or modified. That the recording technology relied on cellular transmissions left it at the mercy of the strength of the cellular signal and, thus, explained the poor quality of the resulting recordings (including the background noise falling to zero at times).

Nor was the expert's lack of familiarity the only infirmity in the defendant's proffer. At the hearing, the defense offered no specific evidence of what the defendant purportedly had said in the "missing" portions of the August 14 recording. This gap in the proffer is telling because the defendant was available to testify at the discovery hearing and presumably could have supplied the missing information.

Viewed against this backdrop, the district court hardly can be faulted for denying the discovery request. With the...